92 Decision Citation: BVA 92-14622
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-00 852 ) DATE
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THE ISSUES
Entitlement to an increased rating for a right shoulder
disorder, currently evaluated as 20 percent disabling.
Whether new and material evidence has been submitted to
reopen a claim for service connection for post-traumatic
stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. L. Schwartz, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a rating decision of June 19, 1991,
from the New Orleans, LA regional office (RO). The notice
of disagreement was received on July 3, 1991. The statement
of the case was issued on August 7, 1991. The substantive
appeal was received on August 23, 1991. A supplemental
statement of the case was issued on October 22, 1991. The
appeal was received at the Board on February 26, 1992. The
appellant is represented by the Disabled American Veterans
in this matter, which provided additional written argument
to the Board on April 1, 1992.
It has been certified that the veteran had active military
service from March 1967 to November 1969.
Our review reveals that the veteran has submitted a claim
for service connection for residuals of Agent Orange
exposure. This claim has been deferred by the RO pending
the adoption of proposed amendments to 38 C.F.R. § 3.311a,
the "Agent Orange" regulations. These amendments have now
been promulagated, so that this claim may now be considered
by the RO.
After review, it is our judgement that the record may not
yet be ready for a final appellatge decision on the merits
of entitlement to the benefits being sought on appeal.
REMAND
The veteran asserts that his right shoulder disability is
greater than that reflected in the current evaluation. He
avers that shoulder has recently become more painful and
that arthritis has set in. He requests that he be afforded
a special orthopedic examination, noting that his right
shoulder has not been evaluated by the Department of
Veterans' Affairs since 1970, when service connection was
originally granted on an aggravation theory.
In support of his claim, the veteran has submitted a private
examination report, dated in July 1991, which notes several
abnormalities on x-ray examination, including arthritis, and
revealed that the veteran had "just about" full flexion and
extension, with a "moderate" restriction of external
rotation. Although the report indicates that the veteran
presented with complaints of increasing pain and the
sensation that the joint was "partially dislocating", no
assessment regarding painful movement, or functional
impairment, was included in the evaluation. Additionally,
the report is devoid of any indication that the private
examiner reviewed any clinical records in connection with
his assessment.
The applicable regulations in this case, found at 38 C.F.R.
§§ 4.10, 4.40, 4.45, 4.59, and Diagnostic Codes 5003, 5010,
5200, 5201, 5202, 5203, requires that an assessment of
disability include consideration of the "functional
impairment" produced by the disability on the day to day
activities of the veteran. Specifically, an assessment of
pain on movement must be considered as a "functional loss"
over and above any physicial limitation of movement
resulting from the disability. Furthermore, precise degrees
measuring the limitation of movement are necessary in order
for the adjudicator to determine the level of restriction
present in the application of the pertinent regulations.
Moreover, the Department of Veterans' Affairs (VA) has a
duty to assist the veteran in the development of facts
pertinent to his claim. 38 U.S.C. § 5107(a). The United
States Court of Veterans' Appeals (Court) has held that this
duty to assist the veteran includes obtaining adequate VA
examinations. Littke v. Derwinski, 1 Vet. App. 90 (1990).
Additionally, the Court in Schafrath v. Derwinski, 1 Vet.
App. 589 (1991), has placed a great deal of emphasis on the
regulatory requirements specifying that a historical review
of the disorder in issue must be made before an adequate
assessment regarding the status of the disorder may be
determined. 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42. The
examiner's role in observing these requirements is found in
the Physician's Guide for Disability Evaluation Examination
(IB 11-56), Sections 1.12, 1.13, and 1.14.
In the instant case, the evidence of record contains
insufficient clinical information upon which to base an
adjudication. Accordingly, this case is REMANDED to the RO
for the following development:
The veteran should be scheduled for a
special orthopedic examination in
order to determine the current nature
and extent of his right shoulder
disorder. All necessary tests,
including x-ray examination, should be
completed. This evaluation should be
conducted in accordance with the
directives set down by the Court in
Schafrath, as discussed above, and all
pertinent clinical records from the
claims folder should be made available
to the examiner for review.
When this development has been completed, the claim should
be reviewed by the RO. If the benefit sought on appeal is
not granted, the appellant and his representative should be
given a supplemental statement of the case with regard to
the additional development and should also be afforded an
opportunity to respond.
Appellate consideration of the issue regarding service
connection for post-traumatic stress disorder on a new and
material evidence basis, is deferred pending completion of
the action requested in this decision. Therefore, this case
must be returned to the Board notwithstanding the outcome of
the requested action.
No action by the appellant or his representative is required
until further notice is received.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
C. P. RUSSELL
JACK W. BLASINGAME
*38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.